Hodgkinson v. Hodgkinson

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Rowles, Saunders and Lowry, JJ.A.
• Neutral Citation: 2006 BCCA 158
• Citation: 2006 BCCA 158,(2006), 224 B.C.A.C. 224 (CA),267 DLR (4th) 357,53 BCLR (4th) 52,25 RFL (6th) 235,224 BCAC 224,(2006), 224 BCAC 224 (CA),267 D.L.R. (4th) 357,224 B.C.A.C. 224
• Date: 31 March 2006

Hodgkinson v. Hodgkinson (2006), 224 B.C.A.C. 224 (CA);

    370 W.A.C. 224

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. AP.007

Sarah Rebecca Pattison Hodgkinson (appellant/plaintiff) v. Robert Lloyd Hodgkinson (respondent/defendant)

(CA031351; CA031566; CA032571; 2006 BCCA 158)

Indexed As: Hodgkinson v. Hodgkinson

British Columbia Court of Appeal

Rowles, Saunders and Lowry, JJ.A.

March 31, 2006.

Summary:

A wife appealed trial rulings valuing and dividing family assets and dealing with child and spousal support and other financial issues ([2003] B.C.T.C. 1538) and an order nisi of divorce ([2004] B.C.T.C. 1630). She also appealed the dismissal of her application to re-open the trial to submit further evidence and submissions.

The British Columbia Court of Appeal dismissed the appeals respecting the order nisi of divorce and the application to re-open the trial. The court allowed the appeal respecting child and spousal support.

Family Law - Topic 877

Husband and wife - Marital property - Distribution orders - Business, commercial or non-family assets - A couple separated - The husband had significant corporate assets - The trial judge ordered an equal division of assets but declined to order an in specie division of corporate assets as sought by the wife and instead effected the equal distribution through a compensation order to be paid by the husband to the wife of $476,665, after taking into account the value of assets the judge allocated entirely to each party - The wife appealed, challenging the trial judge's refusal to divide the assets of the three companies in specie - Rather, she sought an order transferring shares held by the companies directly to her own corporation - The British Columbia Court of Appeal rejected the wife's argument and refused to interfere with the trial judge's ruling - Firstly, it was too late for the wife to advance a new theory of the case (i.e., that the court had jurisdiction to order an in specie division outside the Family Relations Act), because this issue had not been advanced at trial and had not been fully pleaded - Further, the submissions sought to be advanced were too tenuous to be entertained at this late date - See paragraphs 17 to 26.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance and awards - Awards - Lump sum - [See Family Law - Topic 4045.12 ].

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Where income over $150,000 - A couple with one child separated after a nine year marriage - The 12 year old child resided with the wife - The wife was 44 and a certified chef, but did not work outside the home during the marriage - The husband was 53 - When the couple was married he was chief executive officer of an oil company with assets of $6.7 million and an annual salary of $350,000 - The trial judge ordered the husband to pay $2,415 child support in accordance with the Federal Child Support Guidelines plus all extraordinary expenses of private school tuition and orthodontics - The judge declined to award spousal support, having regard to fact that the wife was receiving assets valued in excess of $3 million and could attain self-sufficiency - The wife appealed - The British Columbia Court of Appeal held that a $300 increase in the table amount of child support was justified because the award at trial failed to cover the child's expenses (i.e., the award at trial was inappropriate) - The court also awarded the wife a $150,000 lump sum of spousal support, holding that the trial judge should have considered the wife's standard of living following separation - See paragraphs 47 to 76.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised (incl. new theory of the case) - [See Family Law - Topic 877 ].

Cases Noticed:

Penn v. Lord Baltimore (1750), 1 Ves Sen. 444 (L.C.), refd to. [para. 20].

Forsythe v. Forsythe, [1991] B.C.T.C. Uned. 746; 33 R.F.L.(3d) 359 (S.C.), refd to. [para. 20].

Grant v. Grant, [1994] B.C.T.C. Uned. E33; 1994 CarswellBC 1335 (S.C.), refd to. [para. 20].

Rohani v. Rohani et al., [2003] B.C.T.C. Uned. 646 (S.C.), revd. (2004), 205 B.C.A.C. 178; 337 W.A.C. 178; 2004 BCCA 605, refd to. [para. 20].

Baker v. British Columbia Insurance Co. (1993), 76 B.C.L.R.(2d) 367 (C.A.), refd to. [para. 21].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 28].

Motyka v. Motyka (2001), 147 B.C.A.C. 233; 241 W.A.C. 233; 18 B.C.L.R.(3d) 339; 12 R.F.L.(5th) 421; 2001 BCCA 18, refd to. [para. 50].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201; 50 R.F.L.(4th) 228, refd to. [para. 57].

L.S. v. E.P. (1999), 126 B.C.A.C. 28; 206 W.A.C. 28; 67 B.C.L.R.(3d) 254; 175 D.L.R.(4th) 423 (C.A.), refd to. [para. 60].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40; 172 D.L.R.(4th) 577; 46 R.F.L.(4th) 1, refd to. [para. 62].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 43 R.F.L.(3d) 345; [1983] 1 W.W.R. 481, refd to. [para. 63].

Newson v. Newson et al. (1993), 25 B.C.A.C. 24; 43 W.A.C. 24; 78 B.C.L.R.(2d) 35; 45 R.F.L.(3d) 15 (C.A.), refd to. [para. 63].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 169 D.L.R.(4th) 577; 63 B.C.L.R.(3d) 77, refd to. [para. 66].

Ross v. Ross (1995), 168 N.B.R.(2d) 147; 430 A.P.R. 147; 16 R.F.L.(4th) 1 (C.A.), refd to. [para. 66].

Counsel:

A.E. MacLennan, Q.C., for the appellant;

P. Daltrop, for the appellant (CA031566);

G.A. Lang and M. Bjelos, for the respondent.

These appeals were heard in Vancouver, British Columbia, on September 8 and 9, 2005, before Rowles, Saunders and Lowry, JJ.A., of the British Columbia Court of Appeal. Saunders, J.A., delivered the following reasons for judgment for the court on March 31, 2006.